Gurbir Singh Alias Gopi v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta2on Sec2ons 62 01.08.2023 Sarai Amanat Khan 21 (C) of NDPS Act (Sec!on 29 of NDPS Act added later on)

¶1The pe!!oner incarcerated in the FIR cap!oned above had come up before this Court under Sec!on 483 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2In paragraph 19 of the bail pe!!on, the accused declares that he has no criminal antecedents. However, as per para 12 of status report/custody cer!ficate, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta2on

¶151 24.07.2019 21-61-85 of NDPS Act Khalra, DisB. Tarn Taran

¶203 04.02.2020 21 of NDPS Act SSOC, Amritsar

¶3484 2020 42, 52 A of Prison Act Islamabad

¶4500 2022 42, 52 A of Prison Act Islamabad

¶3The facts and allega!ons are taken from the status report filed by the State. On Aug 01, 2023, based on a chance recovery, the Police seized 500 grams of heroin from the pe!!oner's possession. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4The pe!!oner's counsel prays for bail by imposing any stringent condi!ons and contends that further pre-trial incarcera!on would cause an irreversible injus!ce to the JYOTI pe!!oner and their family. order/judgment. 1

¶5The State's counsel opposes bail and refers to the status report.

¶6Dealing in 500 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin/ ChiBa/ Smack/ Brown Sugar Quan!ty detained 500 Gram Quan!ty type Commercial Drug Quan"ty in % to upper limit

200.00% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No!fica!on No S.O.1055(E) Dated 10/19/2001 Sr. No. 56 Common Name (Name of Narco!c Drug and Psychotropic Substance Heroin (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quan!ty 5 Gram Commercial Quan!ty 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No!fica!on No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) Dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explana!on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid prepara!ons shall be calculated on the basis that a prepara!on containing one per cent. of a substance means a prepara!on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepara!on and so on in propor!on for any greater or less percentage: Provided that the Central Government may, having order/judgment. 2 developments in the field of methods of calcula!ng percentages in liquid prepara!ons prescribed, by rules, any other basis which it may deem appropriate for such calcula!on.

¶7The quan!ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe!!oner must sa!sfy the twin condi!ons put in place by the Legislature under Sec!on 37 of the NDPS Act.

¶18Sec!on 37 of the NDPS Act mandates under sub-sec!on (1) (b) of sec!on 37 that no person accused of an offense punishable for offenses involving commercial quan!ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica!on of release, and (ii) where the Public Prosecutor opposes the applica!on, the Court is sa!sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the pe!!oner to sa!sfy the twin condi!ons put in place by the Legislature under Sec!on 37 of the NDPS Act. Given the legisla!ve mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan!ty of contraband only aPer recording reasonable sa!sfac!on of its rigors.

¶9The State's Counsel argues that a plain reading of Sec!on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be no!ced that the provisions are couched in nega!ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the pe!!oner is not guilty of the offense. The burden of proof is also on the pe!!oner to sa!sfy the Court about his non-involvement in the case. While interpre!ng the provisions of Sec!on 37 of the NDPS Act, the Court must be guided by the objec!ve sought to be achieved by puRng these stringent condi!ons.

¶10Sa!sfying the feBers of S. 37 of the NDPS Act is candling the infer!le eggs. The stringent condi!ons of sec!on 37 placed in the statute by the legislature do not create a 1 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in order/judgment. 3 bar for bail for specified categories, including the commercial quan!ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail pe!!ons under general penal statutes like IPC. Thus, both the twin condi!ons need to be sa!sfied before a person accused of possessing a commercial quan!ty of drugs or psychotropic substance is to be released on bail. The first condi!on is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail applica!on. The second s!pula!on is that the Court must be sa!sfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these condi!ons is not met, the ban on gran!ng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan!al probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the condi!ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s!ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.

¶11The pe!!oner's counsel refers to the bail pe!!on. It would be relevant to refer to paras 4 to 6, which reads as follows: "4. That there is no compliance of sec"on 50 of NDPS Act, which is mandatory provisions which caused great prejudice to the pe""oner.

¶5That nothing has been recovered from the pe""oner and in fact no such recovery has been affected from the present pe""oner and the pe""oner has been implicated falsely in the present case by the police while si3ng in the police sta"on for the reasons best known to them.

¶6That the pe""oner has been falsely implicated in the present case. This fact shows from recovery memo, which was prepared at the spot on

31.07.2023. If we go through the recovery memo, in the bo8om of the memo the IO has signed and put a date of 31.07.2023 and in the upper part of the memo, FIR number 62 dated 01.08.2023 is men"oned. If the memo was prepared on 31.07.2023 and at the "me FIR was not registered, then how the inves"ga"on officer men"oned FIR number, dated, under sec"on on the top of memo. This fact shows that the alleged recovery has been planted by the inves"ga"on agency and by preparing the case file in the police sta"on. The recovery memo of the motorcycle also shows the same thing. The memo was prepared on 31.07.2023 and on the top of the memo, FIR number 62 dated 01.08.2023 has been men"oned. A copy of the memo dated 31.07.2023 is a8ached as Annexure JYOTI P-2 and Annexure P-3." order/judgment. 4

¶12A perusal of FIR reveals primafacie compliance of S.50; however, it is subject to proof during the trial.

¶13The police party no!ced the pe!!oner just before midnight, and the alleged defect is subject to cross-examina!on by the concerned officials.

¶14The pe!!oner's arguments did not point toward any material contradic!ons. It was a case of chance recovery. As such, S. 42 would not apply ini!ally, and recovery was not from the person. As such, S. 50 would also not aBract. Non-examina!on of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examina!on in chief and its cross-examina!on.

¶15The submissions made above and the grounds in the bail pe!!on do not shiP the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe!!oner has not stated anything in the bail pe!!on to discharge the burden put by the stringent condi!ons placed in the statute by the legislature under sec!on 37 of the NDPS Act. The inves!ga!on reveals sufficient prima facie evidence to connect the pe!!oner with the crime; thus, the pe!!oner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the pe!!oner, the State, or the other accused.

¶16As per the custody cer!ficate dated 05.11.2024, the pe!!oner's custody is around one year and three months, which cannot be considered prolonged.

¶17In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon'ble Supreme Court holds, [4]. According to the prosecu!on, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of inves!ga!on, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leBer and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in ques!on was to be handed over to accused-Khalil Uddin, an owner of a tea shop. [5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aPer they had undergone custody to the tune of about a year. Ques!oning grant of relief to said accused, the instant appeals have been preferred. [7]. What emerges from the record is that large quan!ty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played order/judgment. 5 by said Md. Jakir Hussain could get connected with both the accused is a ques!on. [8]. The answer to said ques!on could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Sec!on 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Sec!on 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by

(NCB) Bengaluru v. Pallulabid Ahmad Arimu8a , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. [9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the maBer stands on a different foo!ng. In our considered view, in the face of the mandate of Sec!on 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith. [10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the maBer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

¶18In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-2024, Hon'ble Supreme Court holds, The pe!!oners are in custody since 28th May, 2022 for alleged commission of alleged offence under Sec!on 20(b)(ii)(c) of the Narco!c Drugs and Psychotropic Substances Act, 1985. As per the FIR allega!on, 125.3 kg. of "Ganja" was recovered from the pe!!oners. [3]. It is not in dispute that the trial has commenced and that three prosecu!on witnesses have been examined !ll date. [4]. Learned counsel for the pe!!oners submits that the third prosecu!on witness was examined as far back as on 28th January, 2024 and since then, no other prosecu!on witness has been examined. There is, however, no such averment in the pe!!on. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecu!on to have all the witnesses examined by the end of this year. [6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law. [7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the pe!!oners shall be at liberty to renew their prayer order/judgment. 6

¶19A perusal of the bail pe!!on and the documents aBached primafacie points towards the pe!!oner's involvement and does not make out a case for bail. The impact of crime would also not jus!fy bail. Any further discussions will likely prejudice the pe!!oner; this court refrains from doing so.

¶20Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶21Pe22on dismissed. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

18.11.2024 Jyo2-II Whether reportable: No. order/judgment. 7

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 07.11.2024 Pronounced on: 18.11.2024 Gurbir Singh @ Gopi ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Ranbir Singh Sekhon, Advocate, for the pe!!oner. Mr. Jasjit Singh, DAG, Punjab. ****